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A critical protection for the elderly, according to Fair Arbitration Now Coalition (FANC), a group of more than 75 consumer, health and advocacy groups, is being stripped by the CMS (Centers for Medicare and Medicaid Services). 

CMS announced in June that it would do away with an Obama-era rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court. Nursing home residents and their families would no longer have the right to sue facilities in court over abuse, neglect or sexual assault. 

What is behind the proposed change? 

According to a New York Times September 2016 article: 

• The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close. 

• Juries don’t like people or institutions that commit elder abuse, and there have been awards in the millions against nursing homes.  

• Arbitration potentially keeps embarrassing practices from going public. 

Why file a lawsuit against a nursing home? 

“Many nursing homes are run properly and provide caring and safe respites for our loved ones. However, when things go wrong and our loved ones have been injured when in the nursing home’s care, it is time to hold the nursing home accountable and file a lawsuit. These lawsuits come under the general heading of elder abuse and can include neglect, physical violence, abuse, emotional violence, or financial abuse. Nursing homes can be liable for damage to the loved one, but also for punitive damages,” said Attorney Randall Spivey, Fort Myers Nursing Home Abuse Lawyer. 

How would caregivers be able to resolve disputes if the measure passes? 

AgingCare.com says that nursing homes can include binding arbitration clauses in their contracts to limit the chances of being taken to court over their actions, or inactions. The person who signs an agreement that includes a binding arbitration clause must allow any conflicts to be disputed and resolved through arbitration. This is a process where arguments are heard and judged by specially trained and licensed arbitrators.There are drawbacks to arbitration as there will be no: 

• Public record of the dispute 

• Trial and no jury of peers to hear arguments and decide on an issue.

Unlike some other types of arbitration, binding arbitration judgments cannot be appealed in court. 

Florida laws protecting nursing home residents

Under Florida Rule Chapter 59A-4, nursing home patients are entitled to a basic set of rights when living in a nursing home:

• Florida nursing home laws require that a nursing home provide patients with a “safe, clean, comfortable, and homelike environment.”
• Nursing home residents have the right to nutritious meals, daily exercise, social activities, compassion, access to emergency health care, access to medication, mental counseling (if needed), and the right to peaceful living free of any form of abuse.
• If a caregiver or professional employee of the nursing home staff violates any of these rules, the incident should be reported immediately.

Further Florida requirements are that any person who knows, or has reasonable cause to suspect, that a vulnerable adult has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the Florida Abuse Hotline on the toll-free telephone number, 1-800-96-ABUSE (1-800-962-2873). 

Attorney Spivey recommends that, “If your loved one has been injured because of nursing home negligence and/or abuse, contact the experienced injury attorneys at Spivey Law Firm, Personal Injury Attorneys, P.A. to determine your rights.” 

Florida Nursing Home Negligence Attorney,Randall L. Spivey is a Board Certified Civil Trial Attorney – the highest recognition for competence bestowed by the Florida Bar and a distinction earned by just one (1%)percent of Florida attorneys. He has handled over 2,000 personal injury and wrongful death cases throughout Florida. For a free and confidential consultation to discuss your legal rights, contact the Spivey Law Firm, Personal Injury Attorneys, P.A., in Lee County at  239. 337.7483 or toll free at 1.888.477.4839, or by email to Randall@SpiveyLaw.com.  Visit SpiveyLaw.com  for more information. You can contact Spivey Law Firm, Personal Injury Attorneys, P.A. in Charlotte County at 941.764.7748 and in Collier County 239.793.7748.